Spencer v Attorney General: decision on disabled New Zealanders and their caregivers welcomed

Spencer v Attorney General: decision on disabled New Zealanders and their caregivers welcomed

July 21, 2016

The Human Rights Commission has paid tribute to Margaret Spencer who has successfully challenged Government policies that excluded family members from receiving publicly funded payments for providing disability support. Mrs Spencer has provided care for her 48-year-old son Paul, who has Downs Syndrome, throughout his life.

“Margaret Spencer has always said that she was fighting not just for herself and her son but for many families in the same situation, we are very grateful to New Zealanders like her who fight for human rights on all of our behalf,” said Chief Human Rights Commissioner David Rutherford.

“Today’s landmark judgement is a testament to the efforts people with disabilities and their families have put in over many years in battling a system that frequently fails to acknowledge and respect their rights.”

“We welcome the Court’s order that the Ministry of Health should educate its staff about the importance of the human rights of disabled people and their caregivers. Public policies that uphold and promote human rights principles deliver better outcomes for all New Zealanders.”

This afternoon, the High Court released its judgment on remedies in the case of Spencer v Attorney General. The Human Rights Commission appeared as in intervener in the case. It is a landmark decision, and the first in which the Court has awarded monetary damages to a claimant who has suffered loss as a result of a discriminatory Government policy.

It represents a new stage in the litigation arising from Atkinson v Ministry of Health, where the Courts ruled that the pre-2013 Ministry of Health policy not to pay family caregivers for the care they provided their disabled adult children constituted unlawful discrimination.

Margaret Spencer was one of those caregivers and has provided care for her 48 year old son Paul, who has Downs Syndrome, throughout his life.

Timeline

2001: Margaret Spencer writes a complaint to then Prime Minister Helen Clark about the discrimination against family members caring for their disabled children, saying they should be paid the same as non-family carers.

2007: Spencer repeats the complaint to the Human Rights Commission, which is already taking another similar case -known as the Atkinson proceeding.

2010: The Atkinson claim is upheld by the Human Rights Review Tribunal, finding that excluding payments to carers of disabled family members was discriminatory and in breach of human rights.

2012: The Court of Appeal upholds that decision after being challenged by the Ministry of Health.

2012: Spencer applies for family caregiver funding. The Ministry of Health refuses her.

2013: Spencer seeks a judicial review of that decision. At the same time, a new Public Health and Disability Act is passed . The ministry says it precludes Spencer getting relief from review. That decision is also challenged by Spencer.

2013: Chief High Court judge Justice Helen Winkelmann finds in Spencer's favour, and says the ministry acted unlawfully and in breach of her rights by refusing to consider her application for funding. She said Spencer was not precluded by the new Act from from applying for compensation for past discrimination. The Ministry of Health appeals.